Chief Justice Khosa: has said that the Supreme Court’s suo motu powers would be exercised ‘very sparingly’.

Text Size:AAA

Internews/Islamabad

Instead
of regularising the public interest jurisdiction by amending its rules,
the Supreme Court of Pakistan has resolved that it will exercise its
suo motu jurisdiction “in accordance with the Constitution”.
Suo motu
is Latin for “on it’s own motion”. In legal terms, suo motu powers
allows the Supreme Court to initiate actions without first requiring a
case to be filed.
“The issue of the exercise of jurisdiction under
Article 184(3) of the Constitution was discussed threadbare from all
possible angles, and it was affirmed that such jurisdiction will be
exercised in accordance with the Constitution,” say the minutes of the
February 6 full court meeting.
Chief Justice of Pakistan Asif Saeed
Khosa had called the full court to consider the amendment in order XXV
Supreme Court Rules, relating to the exercise of powers under Article
184(3) of the Constitution as proposed by the Supreme Court Bar
Association (SCBA) last year.
Former SCBA president Peer Kaleem
Khursheed had submitted proposed amendments to the Supreme Court rules
to regularise the public interest jurisdiction under Article 184(3).
He
said that the bar had recommended rules guiding where the Supreme Court
should exercise public interest jurisdiction and where it should not.
The
bar had proposed that the right to appeal should be given against
verdicts rendered under Article 184(3) of the Constitution, Khursheed
said.
Legal experts believe that there is no consensus among the
Supreme Court judges to regulate the public interest jurisdiction and
giving right to appeal in suo motu cases through amendment of the apex
court’s rules.
Renowned lawyer Faisal Siddiqi said this proves the
disagreement among judges regarding the parameters and interpretation of
Article 184(3).
“Thus, the only bare minimum agreement among them is
that they will act in accordance with the Constitution, which resolves
nothing as each judge has his own interpretation of the constitutional
provision of Article 184(3),” he said.
Former attorney general Irfan
Qadir, who has been a strong critic of the suo motu jurisdiction in the
past, said that the full court’s decision was unfortunate.
He added
that the Supreme Court uses suo motu powers to regularise politics by
applying Article 62(1) of the Constitution and maintaining good
governance in the country, which is not its domain.
“Where it is
written in the Constitution or the judges’ code of conduct, that the
apex court will intervene in governance issues due to executive’s
failure?” he questioned.
Qadir also lamented that the court
exercising quo warranto jurisdiction had ousted a number of political
leaders, judges and civil servants, but there is no check on the court’s
authority.
Quo warranto is a legal action that requires a person to show under which authority he or she has acted.
Qadir
said that it is about time the parliament looked into the matter so
that tracheotomy of power could not be violated further.
Another
lawyer, who requested anonymity, said that when the superior judiciary
has structured discretionary powers of executive authorities, including
the prime minister, then it must also regulate the chief justice’s
unfettered powers of suo motu and constitution of benches.
“If the
judiciary does not regularise the public interest jurisdiction, then
parliament might take up the issue, which may become a source of tension
among institutions,” he pointed out
Chief Justice Khosa in his first
speech on January 17 said that either through a full court meeting or
through a judicial exercise, an effort shall be made to determine and
lay down the scope and parameters of the exercise of the original
jurisdiction of this court under Article 184(3).
“And, if deemed
appropriate, to carve out the scope of an intra-court appeal in such
matters through an appropriate amendment of the Supreme Court Rules or
to suitably amend the provisions relating to review jurisdiction so as
to enlarge its scope in such cases,” he said.
The chief justice also
said that suo motu exercise of the Supreme Court’s jurisdiction under
Article 184(3) of the Constitution shall be exercised very sparingly and
only in respect of larger issues of national importance, where either
there is no other adequate or efficacious remedy available, or the
available constitutional or legal remedies are ineffective or are
rendered incapacitated.
Senior lawyers believe that there will be a
challenge for the chief justice, who is retiring in December, to evolve a
consensus among the Supreme Court judges to regulate suo motu powers by
amending the apex court’s rules.
Both the leading opposition parties
– the Pakistan Muslim League – Nawaz (PML-N) and the Pakistan Peoples
Party (PPP) – faced a tough time due to use of suo motu powers by the
apex court, with a number of politicians facing disqualification.
The
Article 225 of the Constitution says that no election dispute can be
called in question except via election petitions, but dozens of
lawmakers have been disqualified through the exercise of the quo
warranto under Article 184(3).
Interestingly, there is no option of filing appeal against the judgment in a suo motu case.
The
PPP’s latest manifesto also states that Article 184(3) has been used in
ways that “did not inspire great confidence in its use by courts in
human rights issues”.
Both the senior-most judges, Justices Gulzar
Ahmad and Sheikh Azmat Saeed, were part of the bench led by former chief
justice Iftikhar Chaudhry, which heard several public interest matters.
Justice
Ahmad, who is next in line to become the chief justice and will hold
the post for over two years, has already initiated proceedings of public
interest litigation for removal of encroachments from Karachi.
Likewise,
Justice Saeed has authored two rulings, wherein the jurisdiction of quo
warranto to examine the qualification of lawmakers under Article
62(1)(f) of the Constitution has been extended last year.
He also endorsed the formation of a joint investigation team (JIT) to probe the Panama Papers case.
He does not spare executive authorities regarding the enforcement of fundamental rights in the country.
However, Justice Saeed is retiring in August.
After analysing past judgments, it can be said that future chief justices have varying approaches to public interest litigation.